新編國際貨物買賣合同中買賣雙方的權利義務課件

1、國際貨物買賣合同中買賣雙方的權利義務CISG第三部分Incoterms2000合同法總則及分則第九章 8/7/20221ruc hly義務淵源聯(lián)合國國際貨物銷售合同公約Incoterms2000合同法總則及分則第九章當事人約定8/7/20222ruc hly公約規(guī)定的義務共同義務保全貨物通知賣方的四大義務買方的兩大義務8/7/20223ruc hly賣方的義務交付合同規(guī)定的貨物交付單據(jù)（轉移所有權）貨物相符權利保證8/7/20224ruc hlyArticle 30 The seller must deliver the goods, hand over any documents relat

2、ing to them and transfer the property in the goods, as required by the contract and this Convention.Section I. Delivery of the goods and handing over of documents 8/7/20225ruc hly1交貨：deliver the goods何為交付：自愿轉移占有形式？地點特定地點涉及運輸，交給第一承運人不涉及運輸，特定貨物或未特定化貨物，知悉的特定地點其他情況，賣方訂立合同時的營業(yè)地時間具體日期一段時期合同訂立后合理時間8/7/2022

3、6ruc hly31（b）31.If the seller is not bound to deliver the goods at any other particular place, his obligation to deliver consists:(b) if, in cases not within the preceding subparagraph, the contract relates to specific goods, or unidentified goods to be drawn from a specific stock or to be manufactu

4、red or produced, and at the time of the conclusion of the contract the parties knew that the goods were at, or were to be manufactured or produced at, a particular place-in placing the goods at the buyers disposal at that place; 8/7/20227ruc hly交貨方式（運輸）交給承運人加注貨物標記注明貨物，否則發(fā)貨通知如果安排運輸，必要運輸合同如果無義務保險，提供保險

5、幫助8/7/20228ruc hly32(2) 32(2) If the seller is bound to arrange for carriage of the goods, he must make such contracts as are necessary for carriage to the place fixed by means of transportation appropriate in the circumstances and according to the usual terms for such transportation.8/7/20229ruc hl

6、y2交單交付單據(jù)(轉移所有權)與國內貿易的最大不同交貨之外的獨立義務按合同規(guī)定的時間、地點、形式8/7/202210ruc hlyArticle 34 If the seller is bound to hand over documents relating to the goods, he must hand them over at the time and place and in the form required by the contract. If the seller has handed over documents before that time, he may, up

7、 to that time, cure any lack of conformity in the documents, if the exercise of this right does not cause the buyer unreasonable inconvenience or unreasonable expense. However, the buyer retains any right to claim damages as provided for in this Convention. 8/7/202211ruc hly3貨物相符四方面數(shù)量（溢短裝）質量規(guī)格包裝如何確定

8、相符約定標準（相互間的關系）規(guī)格（買方或賣方的規(guī)定確定A65）說明樣品公約最低標準8/7/202212ruc hly3貨物相符（公約標準）四標準：買方訂約時已知例外（賣方免責）通常使用目的特定目的樣品通常方式包裝8/7/202213ruc hly貨物檢查標準機構時間地點賣方檢驗，結算依據(jù)買方檢驗，最終依據(jù)雙方約定8/7/202214ruc hly買方通知不符時間及時檢驗及時通知不符過期喪失主張不符權賣方已知或不可能不知而未告知的，例外8/7/202215ruc hly貨物不符與風險轉移貨物不符與途中滅損風險承擔是兩個不同問題賣方負責期限CISG36賣方應按照合同和本公約的規(guī)定，對風險轉移到買方

9、時所存在的任何不符合同情形，負有責任，即使這種不符合同情形在該時間后方始明顯。賣方對上一款所述時間后發(fā)生的任何不符情形，也應負有責任，如果這種不符合同情形是由于賣方違反他的某項義務所致，包括違反關于在一段時間內貨物將繼續(xù)適用于其通常適用的目的或某種特定目的，或將保持某種特定質量或性質的任何保證。風險轉移時風險轉移后違約延長期限8/7/202216ruc hly賣方對貨物不符的責任買方訂約時知道不符否？不知，賣方有責已知，賣方免責（賣方已知？）買方收貨后合理通知？有，則賣方有責無，則買方失權賣方已知而沒告知，不能主張買方失權（保護買方）8/7/202217ruc hlyArticle 35 一般

10、要求35(1) The seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract. 8/7/202218ruc hly四標準35(2) Except where the parties have agreed otherwise, the goods do not conform with the co

11、ntract unless they: (a) are fit for the purposes for which goods of the same description would ordinarily be used; (b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer

12、did not rely, or that it was unreasonable for him to rely, on the sellers skill and judgment; (c) possess the qualities of goods which the seller has held out to the buyer as a sample or model; (d) are contained or packaged in the manner usual for such goods or, where there is no such manner, in a m

13、anner adequate to preserve and protect the goods. 8/7/202219ruc hly賣方負責的期限36(1) The seller is liable in accordance with the contract and this Convention for any lack of conformity which exists at the time when the risk passes to the buyer, even though the lack of conformity becomes apparent only aft

14、er that time. (2) The seller is also liable for any lack of conformity which occurs after the time indicated in the preceding paragraph and which is due to a breach of any of his obligations, including a breach of any guarantee that for a period of time the goods will remain fit for their ordinary p

15、urpose or for some particular purpose or will retain specified qualities or characteristics. 8/7/202220ruc hly35（3）賣方因買方已知而免責35(3) The seller is not liable under subparagraphs (a) to (d) of the preceding paragraph for any lack of conformity of the goods if at the time of the conclusion of the contra

16、ct the buyer knew or could not have been unaware of such lack of conformity.8/7/202221ruc hly38 買方檢查時間、地點(1) The buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances. (2) If the contract involves carriage of the goods, examinatio

17、n may be deferred until after the goods have arrived at their destination. (3) If the goods are redirected in transit or redispatched by the buyer without a reasonable opportunity for examination by him and at the time of the conclusion of the contract the seller knew or ought to have known of the p

18、ossibility of such redirection or redispatch, examination may be deferred until after the goods have arrived at the new destination. 8/7/202222ruc hly39 不符通知(1) The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of th

19、e lack of conformity within a reasonable time after he has discovered it or ought to have discovered it. (2) In any event, the buyer loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of two years from the date on

20、which the goods were actually handed over to the buyer, unless this time-limit is inconsistent with a contractual period of guarantee. 8/7/202223ruc hly40賣方已知缺陷，保護買方The seller is not entitled to rely on the provisions of articles 38 and 39 if the lack of conformity relates to facts of which he knew

21、or could not have been unaware and which he did not disclose to the buyer.8/7/202224ruc hly4賣方權利擔保義務與責任何種權利何時權利何地權利對誰嚴格8/7/202225ruc hly4物權擔保交付的貨物，第三方不能提出任何權利或要求買方同意例外（賣方免責）買方及時通知與失權賣方知或應知權利要求，不能主張買方失權（保護買方）8/7/202226ruc hly知識產權權利擔保第三方不得提出知識產權權利或要求預期轉售地使用地買方所在地訂約時賣方已知或不可能不知買方已知或提供圖樣例外買方及時通知與失權賣方已知或應

22、知，不能主張買方失權8/7/202227ruc hly案例討論許可方歐洲公司被許可方中國公司多條生產線 合法 自己組裝出口美國 被指控侵權 其他國家？怎辦8/7/202228ruc hlyArticle 41 物權性質的要求The seller must deliver goods which are free from any right or claim of a third party, unless the buyer agreed to take the goods subject to that right or claim. However, if such right or c

23、laim is based on industrial property or other intellectual property, the sellers obligation is governed by article 42. 8/7/202229ruc hlyArticle 42 賣方對締約時已知IP承責(1) The seller must deliver goods which are free from any right or claim of a third party based on industrial property or other intellectual

24、property, of which at the time of the conclusion of the contract the seller knew or could not have been unaware, provided that the right or claim is based on industrial property or other intellectual property: (a) under the law of the State where the goods will be resold or otherwise used, if it was

25、 contemplated by the parties at the time of the conclusion of the contract that the goods would be resold or otherwise used in that State; or (b) in any other case, under the law of the State where the buyer has his place of business. 8/7/202230ruc hlyArticle 42 買方已知使賣方免責(2) The obligation of the se

26、ller under the preceding paragraph does not extend to cases where: (a) at the time of the conclusion of the contract the buyer knew or could not have been unaware of the right or claim; or(b) the right or claim results from the sellers compliance with technical drawings, designs, formulae or other s

27、uch specifications furnished by the buyer. 8/7/202231ruc hly43買方通知義務與賣方已知43(1) The buyer loses the right to rely on the provisions of article 41 or article 42 if he does not give notice to the seller specifying the nature of the right or claim of the third party within a reasonable time after he has

28、 become aware or ought to have become aware of the right or claim. (2) The seller is not entitled to rely on the provisions of the preceding paragraph if he knew of the right or claim of the third party and the nature of it. 44 Notwithstanding the provisions of paragraph (1) of article 39 and paragr

29、aph (1) of article 43, the buyer may reduce the price in accordance with article 50 or claim damages, except for loss of profit, if he has a reasonable excuse for his failure to give the required notice.8/7/202232ruc hly買方義務支付價款支付準備和實際支付?賣方未交付貨物,應否付款接收貨物接收準備和實際接收不是接受8/7/202233ruc hlyArticle 5353 The

30、 buyer must pay the price for the goods and take delivery of them as required by the contract and this Convention.8/7/202234ruc hly54付款準備54. The buyers obligation to pay the price includes taking such steps and complying with such formalities as may be required under the contract or any laws and reg

31、ulations to enable payment to be made. 8/7/202235ruc hly付款地點特定地點賣方營業(yè)地交貨交單地8/7/202236ruc hly57付款地點57(1) If the buyer is not bound to pay the price at any other particular place, he must pay it to the seller: (a) at the sellers place of business; or (b) if the payment is to be made against the handing

32、 over of the goods or of documents, at the place where the handing over takes place. (2) The seller must bear any increase in the expenses incidental to payment which is caused by a change in his place of business subsequent to the conclusion of the contract.8/7/202237ruc hly付款時間特定時間貨物或單據(jù)交買方控制時支付可為交

33、付條件付款可為發(fā)運貨物條件驗貨機會前可不支付與交貨或支付程序抵觸除外到期付款，無需催辦8/7/202238ruc hly58付款時間(1) If the buyer is not bound to pay the price at any other specific time, he must pay it when the seller places either the goods or documents controlling their disposition at the buyers disposal in accordance with the contract and th

34、is Convention. The seller may make such payment a condition for handing over the goods or documents. (2) If the contract involves carriage of the goods, the seller may dispatch the goods on terms whereby the goods, or documents controlling their disposition, will not be handed over to the buyer exce

35、pt against payment of the price. (3) The buyer is not bound to pay the price until he has had an opportunity to examine the goods, unless the procedures for delivery or payment agreed upon by the parties are inconsistent with his having such an opportunity. 8/7/202239ruc hly55 價格的確定55. Where a contr

36、act has been validly concluded but does not expressly or implicitly fix or make provision for determining the price, the parties are considered, in the absence of any indication to the contrary, to have impliedly made reference to the price generally charged at the time of the conclusion of the cont

37、ract for such goods sold under comparable circumstances in the trade concerned.56. If the price is fixed according to the weight of the goods, in case of doubt it is to be determined by the net weight. 8/7/202240ruc hly收取貨物采取一切行動，便利賣方交貨FOB下的租船接收貨物FOB下的派船8/7/202241ruc hly收貨義務66.The buyers obligation

38、to take delivery consists: (a) in doing all the acts which could reasonably be expected of him in order to enable the seller to make delivery; and(b) in taking over the goods.8/7/202242ruc hly共同義務1保全貨物保全情形買方推遲收貨，或貨款同時清結時不付款，賣方控制貨物買方收到貨物，但打算退貨買方退貨，代收貨物保全措施種類寄放出售（條件）合理性費用及補償8/7/202243ruc hly共同義務2通知行權通

39、知宣告合同無效的通知（26條）通知未能及時到達，不影響通知人的權利（27條）另外要求的通知（設定義務的通知）到達生效，如履約寬限期的規(guī)定8/7/202244ruc hly違約類型根本違約與非根本違約效果預期違約與實際違約時間根本違約V.預期違約交叉8/7/202245ruc hly根本違約的界定及結果違約后果剝奪受害人預期利益（主觀）違約方沒有預知（主觀）第三人無理由預知（客觀）受害方可宣告合同無效8/7/202246ruc hly分批交貨與根本違約批次貨物與合同的關系批次貨物前后批次貨物合同貨物宣告合同無效8/7/202247ruc hly25根本違約25A breach of contra

40、ct committed by one of the parties is fundamental if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances woul

41、d not have foreseen such a result. 8/7/202248ruc hly預期違約時間表現(xiàn)措施中止宣告合同無效保證8/7/202249ruc hly71預期違約anticipatory breach71.(1) A party may suspend the performance of his obligations if, after the conclusion of the contract, it becomes apparent that the other party will not perform a substantial part of hi

42、s obligations as a result of: (a) a serious deficiency in his ability of perform or in his creditworthiness; or (b) his conduct in preparing to perform or in performing the contract. 8/7/202250ruc hly71預期違約（續(xù)）(2) If the seller has already dispatched the goods before the grounds described in the prec

43、eding paragraph become evident, he may prevent the handing over of the goods to the buyer even though the buyer holds a document which entitles him to obtain them. The present paragraph relates only to the rights in the goods as between the buyer and the seller. (3) A party suspending performance, w

44、hether before or after dispatch of the goods, must immediately give notice of the suspension to the other party and must continue with performance if the other party provides adequate assurance of his performance.8/7/202251ruc hly違約責任責任類型與救濟措施合同責任與侵權責任合同前/中/后責任賠償責任其他責任（救濟）8/7/202252ruc hly賠償?shù)脑瓌t普遍適用非

45、他所能控制的障礙時的免除高低要求8/7/202253ruc hly賠償原則一方當事人違反合同應負的損害賠償額，應與另一方當事人因他違反合同遭受的包括利潤在內的損失額相等。（實際）subject to 這種損害賠償不得超過違反合同一方在訂立合同時依照他當時已知或理應知道的事實和情況，對違反合同預料到或理應預料到的可能損失。（預期）8/7/202254ruc hly存在替代交易時的賠償如果合同被宣告無效，宣告無效后的合理時間內，買方以合理方式購買替代物，或賣方以合理方式轉售，則要求賠償?shù)囊环娇梢垣@得合同價格與替代交易價格之間的差額以及據(jù)上述賠償?shù)囊话阍瓌t可以取得的其他損害賠償8/7/202255r

46、uc hly沒有替代交易時的賠償如果合同被宣告無效，當事人沒有轉售或購買貨物，而貨物在交付地點又有時價，則要求損害賠償?shù)囊环?，可以取得合同價與宣告合同無效時的時價之間的差額及據(jù)一般賠償原則可取得的其他賠償。如果買方接收貨物后又宣告合同無效，則適用接收貨物時、交付貨物地的時價，即合同價與接收貨物時的時價之間的差額。8/7/202256ruc hly有關損害賠償?shù)囊恍┰瓌t實際與合理預期7445.2/61.2 not deprived of any right he may have to claim damages by exercising his right to other remedies

47、.79.5Nothing in this article prevents either party from exercising any right other than to claim damages under this Convention.8/7/202257ruc hly74損害賠償?shù)囊话阍瓌t：實損74. Damages for breach of contract by one party consist of a sum equal to the loss, including loss of profit, suffered by the other party as a

48、 consequence of the breach. Such damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract, in the light of the facts and matters of which he then knew or ought to have known, as a possible consequence of the breach of c

49、ontract. 8/7/202258ruc hly75解除合同時的損害賠償：差價75.If the contract is avoided and if, in a reasonable manner and within a reasonable time after avoidance, the buyer has bought goods in replacement or the seller has resold the goods, the party claiming damages may recover the difference between the contract

50、 price and the price in the substitute transaction as well as any further damages recoverable under article 74.8/7/202259ruc hly76解除合同時的損害賠償76. (1) If the contract is avoided and there is a current price for the goods, the party claiming damages may, if he has not made a purchase or resale under art

51、icle 75, recover the difference between the price fixed by the contract and the current price at the time of avoidance as well as any further damages recoverable under article 74. If, however, the party claiming damages has avoided the contract after taking over the goods, the current price at the t

52、ime of such taking over shall be applied instead of the current price at the time of avoidance. 8/7/202260ruc hly76.(2) current price (2) For the purposes of the preceding paragraph, the current price is the price prevailing at the place where delivery of the goods should have been made or, if there

53、 is no current price at that place, the price at such other place as serves as a reasonable substitute, making due allowance for differences in the cost of transporting the goods.8/7/202261ruc hly賣方違約時的其他救濟形式實際履行交付替代物根本違約及時通知修理寬限期減價宣告合同無效多交貨物時的處理8/7/202262ruc hly買方違約時的其他救濟形式支付價款收到貨物履約寬限期宣告合同無效8/7/20

54、2263ruc hly減價1要求減價的適用情況或限制（補救）減價按實際交付的貨物在交貨時的價值與符合合同的貨物在當時的價值兩者之間的比例計算。合同價100實際交付的貨價80？8/7/202264ruc hly減價1比例計算合同價符合合同的時價？不符合同的時價？合同價不符合同的時價符合合同的時價8/7/202265ruc hly減價比例If the goods do not conform with the contract and whether or not the price has already been paid, the buyer may reduce the price in

55、the same proportion as the value that the goods actually delivered had at the time of the delivery bears to the value that conforming goods would have had at that time. However, if the seller remedies any failure to perform his obligations in accordance with article 37 or article 48 or if the buyer

56、refuses to accept performance by the seller in accordance with those articles, the buyer may not reduce the price. 8/7/202266ruc hly宣告合同無效avoidance含義效果條件限制8/7/202267ruc hly含義與效果含義相當于解除合同效果解除雙方合同項下的義務賠償存在爭端解決條款依然有效可恢復原狀8/7/202268ruc hly買方宣告合同無效的條件賣方根本違約未交貨時寬限期滿不交貨，或期內聲明不交貨8/7/202269ruc hly買方宣告無效權利的限制

57、相關合理期限內未宣告無效延遲交貨時，知道交貨后非延遲交貨知或應知違約寬限期滿聲明不履約后補救期滿聲明不接受后8/7/202270ruc hly賣方宣告合同無效的條件根本違約寬限期內不付款或不收貨，或聲明不做8/7/202271ruc hly賣方宣告合同無效權的限制買方已經支付價款遲延履行，知道買方發(fā)行義務前遲延履行外，已知應知后合理期限寬限期滿聲明不履約后合理期限8/7/202272ruc hly81宣告合同無效（解除合同）的效果(1) Avoidance of the contract releases both parties from their obligations under it

58、, subject to any damages which may be due. Avoidance does not affect any provision of the contract for the settlement of disputes or any other provision of the contract governing the rights and obligations of the parties consequent upon the avoidance of the contract. 8/7/202273ruc hly81返還恢復原狀(2) A p

59、arty who has performed the contract either wholly or in part may claim restitution from the other party of whatever the first party has supplied or paid under the contract. If both parties are bound to make restitution, they must do so concurrently. 8/7/202274ruc hly49買方宣布合同無效的條件49(1) The buyer may

60、declare the contract avoided: (a) if the failure by the seller to perform any of his obligations under the contract or this Convention amounts to a fundamental breach of contract; or (b) in case of non-delivery, if the seller does not deliver the goods within the additional period of time fixed by t